The end of Rechtsstaat? Rule of law in Poland and in the European Union

German-Polish European BLOG

The end of Rechtsstaat? Rule of law in Poland and in the European Union

5 October 2017

The year 2016 changed everything. A set of coordinated actions by the ruling parliamentary majority, the government, and the President paved the way to the destruction of the independence of the Polish Constitutional Court.

Adam Bodnar *

I started my legal studies at the University of Warsaw in 1995. I remember well the lectures on constitutional law. One of my teachers asked me to read a complex commentary to the Article 1 of the Polish Constitution. It stated that Poland is a democratic state ruled by law, securing social solidarity. The commentary was written by Professor Mirosław Wyrzykowski, who had spent years in Germany, Austria and Switzerland working as a scholar. He quoted extensively Roman Herzog, Klaus Stern, the judgments of the German Bundesverfassungsgericht, as well as the emerging jurisprudence of the Polish Constitutional Court. He gave intellectual backbone to the Polish legal principle.

Later on, as a student, scholar, practitioner and NGO activist, I was observing how the Polish concept of the Rechtstaat was growing. Almost every week, the Constitutional Court challenged flawed legislation, interpreted basic rights, successfully reviewed complaints by citizens and the Ombudsman. Legislators were steadily learning that some inappropriate tricks would not go unchecked. The government took more and more caution when preparing draft laws. Scholars put continuous pressure to shape best practices in the legislative process. Certainly, many of us complained about the inefficiency of the courts, about certain unwise rulings of different courts, and about various legislative mistakes. But we had a feeling that our legal system was slowly improving, and that citizens were having more and more trust in the law and in the operation of the state. There was a prevailing belief that even significant mistakes could be repaired with the use of legal instruments stemming from our 1997 Constitution.

Many of us complained about the inefficiency of the courts, about certain unwise rulings of different courts, and about various legislative mistakes. But we had a feeling that our legal system was slowly improving, and that citizens were having more and more trust in the law and in the operation of the state.

However, the year 2016 changed everything. A set of coordinated actions by the ruling parliamentary majority, the government, and the President paved the way to the destruction of the independence of the Polish Constitutional Court. The Court exists and the Constitution has formally not been changed. However, the Court is without a real power of judicial review and is not any longer reliable in protecting constitutional principles and rights. As Ombudsman, I receive letters from citizens asking for help, but at the same time warning that I should not go to the Constitutional Court. They are afraid of the result that may put them in a position worse than before the start of constitutional adjudication. They still believe in common courts.

Indeed, the toothless Constitutional Court opened the way to legislation that could have never even been thought of before, like the recent Law on the Supreme Court. It provided for the dismissal of all the Supreme Court judges and gave the Minister of Justice the right to “pick and choose” those who would stay in the Court. The paralysis of the Constitutional Court in 2016 created a window of opportunity to pass various laws that strengthened governmental powers, and others concerning public media, the prosecutor’s office, or the intelligence services. I submitted most of those laws to the Constitutional Court, but it was to a great extent a symbolic gesture.

The paralysis of the Constitutional Court in 2016 created a window of opportunity to pass various laws that strengthened governmental powers, and others concerning public media, the prosecutor’s office, or the intelligence services.

Independent courts still remain the symbol of the rule of law in Poland. The July 2017 protests symbolized their value to the society. Nevertheless, despite the President’s vetoes of two laws (on the Supreme Court and on the National Council of Judiciary), the third one – the Law on Organization of Common Courts – entered into force. We can now observe how the Minister of Justice is starting to make his individual decisions on dismissals and appointments of presidents of courts. But we are also observing strong pressure by the government and government-friendly media on the judiciary and a smear PR campaign directed against judges. It is already bringing a “chilling effect”. Judges started to be afraid of personal consequences of their decisions. Such a situation may prolong the decision-making process and enforce opportunistic choices. And the government is aware that most judges do not have any other professional choices than that of being a judge.

Judges started to be afraid of personal consequences of their decisions. Such a situation may prolong the decision-making process and enforce opportunistic choices.

This way, impartiality of judges is called into question by the “chilling effect”. In this environment, the Polish citizen cannot feel secure any longer. The end of the rule of law may also gravely affect the position of Poland in the European Union because it undermines the principle of mutual recognition of judgments within the EU. However, the negative consequences of such a scenario to the Polish economy will not be felt immediately, thus it does not hinder the government from implementing controversial policies.

My personal dream is to teach future Polish students the theory of the rule of law on the basis of the painful examples from our recent history. I hope that it will be possible to overcome the current crisis of the judiciary. If that happens, Polish democracy would emerge much stronger. But, unfortunately, it may take years or even decades. It will not just be a question of changing laws, but of reinforcing civic values such as a genuine belief in human dignity, the ideal of public service, a fully-fledged devotion to the Constitution and treating the law as the highest value in a democratic state.